Rajasthan High Court - Jaipur
Durga Shankar Bareth S/O Late Sh. Ramdan ... vs Shayam Lal S/O Sh. Karamchand on 19 September, 2022
Author: Mahendar Kumar Goyal
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 5511/2021
Durga Shankar Bareth S/o Late Sh. Ramdan Bareth, Aged About 62
Years, R/o Kishangarh Bass, Distt. Alwar, Rajasthan.
----Petitioner/Defendant
Versus
1. Shayam Lal S/o Sh. Karamchand, R/o Khanpur Mevan,
Tehsil Kishangarh Bass, Distt. Alwar.
----Respondent/Plaintiff
2. Santosh Kanwar D/o Late Sh. Ramdan Bareth,
3. Vimla Kanwar D/o Late Sh. Ramdan Bareth, Both are R/o Kishangarh Bass, Tehsil Kishangarh Bass, Distt. Alwar, Rajasthan.
----Proforma Respondents/Defendant
For Petitioner(s) : Mr. Ajay Goyal
For Respondent(s) : None Present
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order 19/09/2022 None appears for the respondents despite service.
This writ petition has been filed under Article 227 of the Constitution of India assailing the legality and validity of the order dated 06.03.2021 passed by learned Additional District Judge No.2, Kishangarh Bass, Alwar in Civil Suit No.34/34/2018 whereby, an application filed by the respondent No.1/plaintiff under Section 65, Evidence Act, 1872 (for brevity, "the Act of 1872") and Section 35, Stamp Act, 1899 (for brevity, "the Act of 1899") seeking to lead secondary evidence in respect of the photocopy of an unregistered and insufficiently stamped agreement to sell, has been allowed.
(Downloaded on 20/09/2022 at 12:34:35 AM)(2 of 7) [CW-5511/2021] The facts in brief are that the respondent No.1/plaintiff filed a suit for specific performance of the agreement to sell dated 06.05.2022 and permanent injunction. During its pendency, he moved an application under Section 65 of the Act of 1872 and Section 35 of the Act of 1899 seeking permission of the Court to lead secondary evidence qua the sale agreement dated 06.05.2022. The application has been allowed by the learned trial Court vide its order dated 06.03.2021, the subject matter of challenge.
Assailing the order, learned counsel for the petitioner/defendant No.1 submits that a photocopy of an insufficiently stamped document is inadmissible in secondary evidence. He submits that a photocopy of such document cannot be validated under Section 35 of the Act of 1899. Learned counsel, in support of his submissions, relies upon a judgement of Hon'ble Apex Court of India in case of Hariom Agrawal Vs. Prakash Chand Malviya; Civil Appeal No.4696/2007. He, therefore, prays that the writ petition be allowed, the order dated 06.03.2021 be quashed and set aside and the application filed by the respondent No.1/plaintiff be dismissed.
Heard. Considered.
Vide order impugned, a photocopy of the insufficiently stamped and unregistered agreement to sell has been permitted in secondary evidence. A three-Judges Bench of the Hon'ble Apex Court of India has, in case of Hariom Agrawal (supra), held as under:-
"7. The instrument as per definition under Section 2(14) has a reference to the original instrument. In State of Bihar v. M/s. Karam Chand Thapar & Brothers Ltd., AIR 1962 SC 110, this Court in paragraph 6 of the judgment held as under :-
"6. It is next contended that as the copy of the award in court was unstamped, no decree could have been passed thereon. The facts are that the arbitrator sent to each of the parties a copy of the award signed by (Downloaded on 20/09/2022 at 12:34:35 AM) (3 of 7) [CW-5511/2021] him and a third copy also signed by him was sent to the court. The copy of the award which was sent to the Government would appear to have been insufficiently stamped. If that had been produced in court, it could have been validated on payment of the deficiency and penalty under Section 35 of the Indian Stamp Act, 1899. But the Government has failed to produce the same. The copy of the award which was sent to the respondents is said to have been seized by the police along with other papers and is not now available. When the third copy was received in court, the respondents paid the requisite stamp duty under Section 35 of the Stamp Act and had it validated. Now the contention of the appellant is that the instrument actually before the court is, what it purports to be, "a certified copy", and that under Section 35 of the Stamp Act there can be validation only of the original, when it is unstamped or insufficiently stamped, that the document in court which is a copy cannot be validated and "acted upon" and that in consequence no decree could be passed thereon. The law is no doubt well- settled that the copy of an instrument cannot be validated. That was held in Rajah of Bobbili v. Inuganti China Sitaramasami Garu, 26 Ind App 262, where it was observed :
"The provisions of this section (section 35) which allow a document to be admitted in evidence on payment of penalty, have no application when the original document, which was unstamped or was insufficiently stamped, has not been produced; and, accordingly, secondary evidence of its contents cannot be given. To hold otherwise would be to add to the Act a provision which it does not contain. Payment of penalty will not render secondary evidence admissible, for under the stamp law penalty is leviable only on an unstamped or insufficiently stamped document actually produced in Court and that law does not provide for the levy of any penalty on lost documents."
This Court had an occasion again to consider the scope and ambit of Sections 33(1), 35 and 36 of the Act and Section 63 of the Indian Evidence Act in Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others, AIR 1971 SC 1070 and held that :-
"13. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.(Downloaded on 20/09/2022 at 12:34:35 AM)
(4 of 7) [CW-5511/2021] Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. Instrument' is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.
14. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words an instrument in Section 36 must have the same meaning as that in Section 35. The legislature only relented from the strict provisions of Section 35 in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the reception of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends the applicability of Section 36 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or insufficiently stamped."
8. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.
13. Section 37 of the Act would be attracted where although the instrument bears a stamp of sufficient amount but such stamp is of improper description, as in the present case where the proper stamp duty of Re.1/- under the Act has not been paid but a notarized stamp of Rs.4/- was affixed on the document. The sufficient (Downloaded on 20/09/2022 at 12:34:35 AM) (5 of 7) [CW-5511/2021] amount of the stamp duty has been paid but the duty paid by means of affixture of notarized stamp is of improper description. By virtue of Rule 19 of the Madhya Pradesh Stamp Rules, 1942, the Collector of Stamp is authorized to receive the proper stamp duty on an instrument which bears a stamp of proper amount but of improper description, and on payment of the adequate duty chargeable under the Act he would certify by endorsement on the instrument that the instrument is duly stamped. Under the proviso to the Rule, the Collector may pardon the further payment of duty prescribed in this Rule provided the person holding the original instrument moves the Collector within three months of the execution of the instrument for certification by endorsement and the Collector is satisfied that the stamp of improper description was used solely on the account of the difficulty or inconvenience of the holder of the instrument to procure the adequate stamp duty required to be paid on the instrument. But the power under Section 37 and Rule 19, even after framing the rules by the State Government, could only be exercised for a document which is an instrument as described under Section 2(14). By various authorities of this Court, an instrument is held to be an original instrument and does not include a copy thereof. Therefore, Section 37 and Rule 19 would not be applicable where a copy of the document is sought to be produced for impounding or for admission as evidence in a case.
15. On a plain reading of Section 48-B, we do not find that the submission of the learned counsel for the appellant that by virtue of this provision the Collector has been authorized to impound even copy of the instrument, is correct. Under this Section where the deficiency of stamp duty is noticed from the copy of any instrument, the Collector may call for the original document for inspection, and on failure to produce the original instrument could presume that proper stamp duty was not paid on the original instrument and, thus, recover the same from the person concerned. Section 48-B does not relate to the instrument, i.e., the original document to be presented before any person who is authorized to receive the document in evidence to be impounded on inadequacy of stamp duty found. The Section uses the phraseology where the deficiency of stamp duty is noticed from a copy of any instrument. Therefore, when the deficiency of stamp duty from a copy of the instrument is noticed by the Collector, the Collector is authorised to act under this Section. On deficiency of stamp duty being noticed from the copy of the instrument, the Collector would order production of original instrument from a person in possession or in custody of the original instrument. Production is required by the Collector for the purpose of satisfying himself whether adequate stamp duty had been paid on the original instrument or not. In the notice given to person in possession or in custody of original instrument, the (Downloaded on 20/09/2022 at 12:34:35 AM) (6 of 7) [CW-5511/2021] Collector shall provide for time within which the original document is required to be produced before him. If, in spite of the notice, the original is not produced before the Collector, the Collector would draw a presumption that original document is not duly stamped and thereafter may proceed in the manner provided in Chapter IV. By virtue of proviso, the step for recovery of adequate stamp duty on the original instrument on insufficiency of the stamp duty paid being noticed from the copy of the instrument, can only be taken within five years from the date of execution of such instrument. The words the Collector may proceed in the manner provided in this Chapter has reference to Section 48 of the Act. Under this Section, all duties, penalties and other sums required to be paid under Chapter IV, which includes stamp duty, would be recovered by the Collector by distress and sale of the movable property of the person who has been called upon to pay the adequate stamp duty or he can implement the method of recovery of arrears of land revenue for the dues of stamp duty. By virtue of proviso to Section 48-B, the Collectors power to adjudicate upon the adequacy of stamp duty on the original instrument on the basis of copy of the instrument is restricted to the period of five years from the date of execution of the original instrument. This Section only authorizes the Collector to recover the adequate stamp duty which has been avoided at the time of execution of the original instrument. This Section does not authorize the Collector to impound the copy of the instrument.
Relying upon the aforesaid judgement and another judgement of the Hon'ble Apex Court of India in case of Nawab Singh Vs. Inderjit Singh Kaur; AIR 1999 SC 1668, a co-ordinate Bench of this Court has, in case of Narendra Kumar Shrivastava & Anr. Vs. Shri Radhakrishna; S.B. Civil Writ Petition No.1612/2014, held as under:-
"13. While in Hariom Agarwal (supra), a Bench of three Hon'ble Judges of the Supreme Court considering admissibility of the document which was not properly stamped in evidence held that instrument not properly stamped was not admissible as evidence and that a photocopy of original instrument cannot be admitted in evidence. It was a case wherein the appellant and respondent executed an agreement whereby landlord tenanted the shop to appellant on payment of advance amount. Respondent filed suit on the ground of bona fide requirement. Appellant produced a photocopy of agreement which was admitted as secondary evidence in the trial court. On appeal, the High Court held that photocopy of agreement cannot be admitted as evidence (Downloaded on 20/09/2022 at 12:34:35 AM) (7 of 7) [CW-5511/2021] and that such a document can neither be impounded nor accepted in secondary evidence. In the appeal filed against the judgment of the High Court, the Apex Court held that Photostat copy which was produced as secondary evidence did not show that on the original agreement proper stamp duty was paid and that copy of instrument cannot be validated by impounding and this cannot be admitted as secondary evidence. Referring to Section 35 of the Indian Stamp Act, 1988 it was held that the document which was not properly stamped shall not be admitted in evidence and the appeal was dismissed.
15. In view of the above, this court is of the view that since the original agreement itself is insufficiently stamped therefore the photo copy of the same is not admissible as secondary evidence."
In the backdrop of aforesaid judgements of the Hon'ble Apex Court of India as also of this Court, in the considered opinion of this Court, the learned trial Court erred in allowing the application filed by the respondent No.1/plaintiff inasmuch as secondary evidence in respect of a photocopy of an insufficiently stamped document is impermissible.
Accordingly, this writ petition is allowed. The order dated 06.03.2021 passed by learned Additional District Judge No.2, Kishangarh Bass, Alwar is quashed and set aside.
(MAHENDAR KUMAR GOYAL),J PRAGATI/s-278 (Downloaded on 20/09/2022 at 12:34:35 AM) Powered by TCPDF (www.tcpdf.org)